B-119220, APR 19, 1954

B-119220: Apr 19, 1954

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WAS SENTENCED TO DISHONORABLE DISCHARGE FROM THE SERVICE. THE RECORD OF THE TRIAL WAS FORWARDED FOR APPELLATE REVIEW. NO PORTION OF THE SENTENCE WAS ORDERED EXECUTED. SANABRIA-CASIANO WAS RELEASED FROM CONFINEMENT AND RESTORED TO DUTY ON JULY 27. YOU ARE UNABLE TO DETERMINE THE LEGALITY OF THE PAYMENT. COURT-MARTIAL FORFEITURE OF FUTURE PAY ARE COLLECTED AS PAY ACCRUES. THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER TTHE DATE SUCH SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY THAT FORFEITURE APPLIED UNDER ARTICLE 57(A) OF THE CODE OF MILITARY JUSTICE BUT NOT ORDERED EXECUTED SHOULD BE REIMBURSED TO AN ACCUSED IN WHOSE CASE CLEMENCY ACTION HAS BEEN TAKEN REMITTING THE UNEXECUTED PORTION OF THE SENTENCE.

B-119220, APR 19, 1954

PRECIS-UNAVAILABLE

COLONEL F.E. BARR, FINANCE CORPS; DEPARTMENT OF THE ARMY:

BY FIRST INDORSEMENT DATED MARCH 10, 1954, THE CHIEF OF FINANCE REFERRED TO THIS OFFICE YOUR LETTER OF FEBRUARY 10, 1954, REQUESTING ADVANCE DECISION AS TO THE PROPRIETY OF PAYMENT OF A MILITARY PAY ORDER SUBMITTED THEREWITH IN FAVOR OF JUAN SANABRIA-CASIANO, PRIVATE-2, AF 50,111,474, FOR PAY AND ALLOWANCES FOR THE PERIOD JANUARY 10, 1953 TO JULY 27, 1953.

IT APPEARS THAT SANABRIA-CASIANO, BY GENERAL COURT MARTIAL SENTENCE ADJUDGED ON DECEMBER 26, 1952, AS APPROVED ON JANUARY 10, 1953, BY THE CONVENING AUTHORITY, WAS SENTENCED TO DISHONORABLE DISCHARGE FROM THE SERVICE, TO FORFEIT ALL PAY AND ALLOWANCES AND TO BE CONFINED AT HARD LABOR FOR FIVE YEARS, WITH THE APPLICATION OF THE FORFEITURE TO APPLY ON AND AFTER THE DATE OF THE GENERAL COURT MARTIAL ORDER. THE RECORD OF THE TRIAL WAS FORWARDED FOR APPELLATE REVIEW, AND NO PORTION OF THE SENTENCE WAS ORDERED EXECUTED. IT FURTHER APPEARS THAT ON JULY 22, 1953, AND PRIOR TO THE SENTENCE BEING ORDERED EXECUTED, THE SECRETARY OF THE ARMY ORDERED THE RESTORATION OF THE ENLISTED MAN TO DUTY AND REMITTED ALL UNEXECUTED PORTIONS OF THE COURT-MARTIAL SENTENCE. SANABRIA-CASIANO WAS RELEASED FROM CONFINEMENT AND RESTORED TO DUTY ON JULY 27, 1953.

YOU STATE THAT IN VIEW OF AN APPARENT CONFLICT BETWEEN THE PROVISIONS OF PARAGRAPH 55A OF ARMY REGULATIONS 35-1820, AND THE INTERPRETATION OF ARTICLES 57(A) AND 71 OF THE UNIFORM CODE OF MILITARY JUSTICE, BY THE JUDGE ADVOCATE GENERAL OF THE ARMY (JAGJ 1953/7590), YOU ARE UNABLE TO DETERMINE THE LEGALITY OF THE PAYMENT.

PARAGRAPH 55A OF ARMY REGULATIONS 35-1820, JULY 2, 1952, PROVIDES AS FOLLOWS:

"55. REMISSION OR SUSPENSION OF FORFEITURE OR DETENTION. - A. GENERAL. - THE SECRETARY OF THE ARMY AND, WHEN DESIGNATED BY HIM THE UNDER SECRETARY, ASSISTANT SECRETARY, JUDGE ADVOCATE GENERAL, OR COMMANDING OFFICER MAY REMIT OR SUSPEND ANY PART OR AMOUNT OF THE UNEXECUTED PORTION OF ANY SENTENCE, INCLUDING ALL UNCOLLECTED FORFEITURES, OTHER THAN A SENTENCE APPROVED BY THE PRESIDENT ( , ART. 74(A), AND PAR. 97A, MCM 1951). COURT-MARTIAL FORFEITURE OF FUTURE PAY ARE COLLECTED AS PAY ACCRUES, ABOVE THAT NEEDED TO LIQUIDATE PRECEDENT INDEBTEDNESS TO THE GOVERNMENT, AND THE REMISSION OF THE UNEXECUTED PORTION OF THE SENTENCE DOES NOT OPERATE ON PAY SO COLLECTED."

ARTICLES 57(A), 71 AND 74(A) OF THE UNIFORM CODE OF MILITARY JUSTICE, 64 STAT. 107, PROVIDE IN PERTINENT PART, AS FOLLOWS:

"ART. 57. EFFECTIVE DATE OF SENTENCE.

(A) WHENEVER A SENTENCE OF A COURT-MARTIAL AS LAWFULLY ADJUDGED AND APPROVED INCLUDES A FORFEITURE OF PAY OR ALLOWANCES IN ADDITION TO CONFINEMENT NOT SUSPENDED, THE FORFEITURE MAY APPLY TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER TTHE DATE SUCH SENTENCE IS APPROVED BY THE CONVENING AUTHORITY. NO FORFEITURE SHALL EXTEND TO ANY PAY OR ALLOWANCES ACCRUED BEFORE SUCH DATE."

"ART. 71. EXECUTION OF SENTENCE; SUSPENSION OF SENTENCE."

"(C) NO SENTENCE WHICH INCLUDES, UNSUSPENDED, A DISHONORABLE OR BAD CONDUCT DISCHARGE, OR CONFINEMENT FOR ONE YEAR OR MORE SHALL BE EXECUTED UNTIL AFFIRMED BY A BOARD OF REVIEW AND, IN CASES REVIEWED BY IT, THE COURT OF MILITARY APPEALS." (UNDERSCORDING SUPPLIED.)

"ART. 74. REMISSION AND SUSPENSION.

(A) THE SECRETARY OF THE DEPARTMENT AND, WHEN DESIGNATED BY HIM, ANY UNDER SECRETARY, ASSISTANT SECRETARY, JUDGE ADVOCATE GENERAL, OR COMMANDING OFFICER MAY REMIT OR SUSPEND ANY PART OR AMOUNT OF THE UNEXECUTED PORTION OF ANY SENTENCE, INCLUDING ALL UNCOLLECTED FORFEITURES, OTHER THAN A SENTENCE APPROVED BY THE PRESIDENT."

IT IS THE OPINION OF THE JUDGE ADVOCATE GENERAL OF THE ARMY THAT FORFEITURE APPLIED UNDER ARTICLE 57(A) OF THE CODE OF MILITARY JUSTICE BUT NOT ORDERED EXECUTED SHOULD BE REIMBURSED TO AN ACCUSED IN WHOSE CASE CLEMENCY ACTION HAS BEEN TAKEN REMITTING THE UNEXECUTED PORTION OF THE SENTENCE.

IT IS AXIOMATIC THAT A REGULATION MAY NOT BE IN DEROGATION OR CONTRADICTION OF A STATUTE. ARTICLE 71(C) OF THE CODE OF MILITARY JUSTICE, QUOTED ABOVE, SPECIFICALLY PROVIDES THAT A SENTENCE WHICH INCLUDES AN UNSUSPENDED DISHONORABLE DISCHARGE SHALL NOT BE EXECUTED UNTIL AFFIRMED BY A BOARD OF REVIEW OR THE COURT OF MILITARY APPEALS.

IN THE CASE OF UNITED STATES V. SMITH, (NO. 2068), 1280192, THE UNITED STATES OF MILITARY APPEALS, IN INTERPRETING ARTICLES 57 AND 71 OF THE CODE OF MIOLITARY JUSTICE HELD -

"*** THE CONVENING AUTHORITY DID NOT SUSPEND THE EXECUTION OF THE BAD- CONDUCT DISCHARGE AND THE RIGHT TO EXECUTE ON ANY PART OF THE SENTENCE MUST AWAIT ACTION BY THIS COURT. THAT, HOWEVER, DOES NOT DISPOSE OF THE ISSUE, AS THE CONVENING AUTHORITY DID NOT ORDER EXECUTION, HE MERELY PROVIDED THAT FORFEITURE SHOULD APPLY TO PAY BECOMING DUE ON AND AFTER THE DATE OF HIS ACTION. TO DETERMINE THE EFFECT OF THAT PART OF THE SENTENCE, IT IS NECESSARY THAT WE CONSIDER ARTICLE 57 OF THE CODE, SUPRA.

"THE APPROVED SENTENCE IN THIS CASE INCLUDES A FORFEITURE OF PAY IN ADDITION TO CONFINEMENT NOT SUSPENDED, AND SO IN ACCORDANCE WITH SECTION (A) THE FORFEITURE CAN BE APPLIED TO PAY OR ALLOWANCES BECOMING DUE ON OR AFTER THE DATE OF APPROVAL BY THE CONVENING AUTHORITY.

"A SOMEWHAT DIFFERENT PERIOD OF TIME IS INVOLVED IN THE FORFEITURES. BECAUSE THE SENTENCE INCLUDED A BAD-CONDUCT DISCHARGE, EXECUTION OF THE FORFEITURES COULD NOT BE IMPOSED UNTIL FINAL APPELLATE REVIEW. THIS, HOWEVER, DOES NOT MEAN THAT SOME ACTION COULD NOT BE TAKEN BY THE CONVENING AUTHORITY TO ASSURE COLLECTING THE FORFEITURES WHEN THE TIME ARRIVED TO EXECUTE. WE BELIEVE THAT ARTICLE 57 OF THE CODE IS EXPRESSLY WORDED TO AUTHORIZE A SENTENCE WHICH WILL PERMIT AN ORDERLY, AND AT THE SAME TIME, A FAIR METHOD OF COLLECTING FORFEITURES. IT MAY AMOUNT TO NO MORE THAN A BOOKKEEPING ENTRY BUT THERE IS A DIFFERENCE BETWEEN APPLYING FORFEITURE AND EXECUTING THEM. APPLICATION CAN COMMENCE ON THE DATE THE CONVENING AUTHORITY ACTS EVEN THOUGH EXCEPTION MUST BE DEFERRED UNTIL COMPLETION OF APPELLATE REVIEW."

IN VIEW OF THE ABOVE, THE OPINION OF THE JUDGE ADVOCATE GENERAL CORRECTLY STATES THE LAW APPLICABLE TO THE PRESENT MATTER. THEREFORE, SINCE THE ENLISTED MAN HERE INVOLVED HAS BEEN RESTORED TO DUTY, AND SINCE NO PORTION OF HIS SENTENCE WAS ORDERED EXECUTED, HE IS ENTITLED TO ALL PAY AND ALLOWANCES WITHHELD FOR THE PERIOD JANUARY 10, 1953 TO JULY 27, 1953. THE MILITARY PAY ORDER IS RETURNED HEREWITH.